
K 



ansas con 



t&stei election. 



*t)Pse«:,hoF Hon- 'Sc\r[ii Rt'ckm'^T-Ti 
0?" Ten-nSy lv2iT>i*a. \8 56 




Glass__EAM_ 
Book .)±-ki±. 



KANSAS CONTESTED ELECTION. 



SPEECH 

OF 

HON. JOHN HICKMAN, OF PA.. 

DELIVERED 



IN THE HOUSE OF REPRESENTATIVES, MARCH 19, 1856. 



Ulosinj the debate on the Resohition reportod by 
him from the Committee of Eloctioiis, aiitlioriz- 
ing the said committee to send for persons and 
papers in the Contested Election c.'xse from tlie 
Territory of Kansas, 

Mr. HICKMAN said : 

Mr. Speaker: The iufirm state of my health 
this morning leaves me little gTound to hope 
that I shall be able to address to this House 
the remarks I had intended to make ; and 
nothing induces me to occupy the floor at 
this time but the connection of my name with 
the action of the majority of the committee 
p.nd their report. 

I wish, sir, to prefiice what I have to sny 
with this single remark, that if sectional feel- 
ing, usurping the seat of judgment, has en- 
tered into the consideration of this question, 
either upon the one side or the other, I regret 
it. It has no legitimate place here. As far 
as concerns myself, I prefer to keep my mind 
entirely dispossessed of any such bias, and to 
examine the proposition as it stands affected 
by legal principle, the demands of justice, and 
the precedent practice of both branches of 
Congress. 

I know there is disloyalty in our country — 
a disloyalty bordering closely upon treason 
— but with that, at present, I have little to 
do. I leave it viith the candid historian to 
pive the impressions of the present, or a fu- 
ture age, upon the conduct of those implicated 
with it; whh the record which he must make 
up, I hope, in-no wise, to bo involved. 

It is a most singularfact, appearing through- 
out this discussion, that the opponents of the 
resolution under consideration have been un- 
able to harmonize upon any common ground 
of resistance. They have advanced no theory 
which they have not speedily and unceremo- 
niously demolished. The positions assumed 
by the gentlemen from Delaware [Mr. Cullen] 
and Georgia, [Mr. Stephens,] although re- 
ceived by their friends with many marks of 
high favor and appreciation, were, upon the 
moment, successfully combated and over- 



thrown by the honorable gentleman from 
Ma.ryland, [Mr. Davis,] and he, at once, be- 
came the laureled champion of their cause. 
They have been utterly ruined by the raking 
fire from their own batteries. Even the piece 
whicli the gentleman last alluded to, aimed 
with such unerring certainty at his friends, 
was found charged with such a powerful ex- 
plosive, that, when he applied the match, its 
recoil fairly prostrated him. Yes, sir, those 
resisting investigation are here now, and in 
full view of the country, unable to give us 
any ground upon which they are willing to 
stand without laltering. They are as 
" Puzzled as the Egjfptians in their fog." 

They wade a dead and stagnant pool ; and 
whenever they cast their net they drav? forth 
but a putrid carcase. If there be doubt with 
respect to the law of the country by which 
the proposition before Us is to be tested, then 
I prefer to take the advice given by the Mace- 
donian philosopher to the orator, and appeal 
to the universal law of justice or equity. 

There is a question here which must be de- 
cided — one which cannot be evaded or over- 
looked. It is a question of startling and 
overpowering importance. And I regret to 
say that I believe there are gentlemen here 
who have taken ground against tts, wheat no 
distant period, will repent the position they 
have assumed. I will give my reasons for be- 
lieving so in the course of my remarks. 

We have received the memorial of Gover- 
nor Reeder on his own behalf, and on behalf 
of his people, asserting that popular sovereign- 
ty in Kansas has been overthrown : 

" That the law under which said pretended 
" election [that of General WTiitfield] was 
" held emanated from a Legislative Assembly 
"which the people and qualified voters of said 
" Territory protest and declare, through your 
" memorialist, were not elected by them, but 
" imposed upon them by the tbrce of superior 
"numbers of non-residents, who could pass no 
"law that would be binding on them, and 
" whose election and action should not be 



H«>i4 



*2 



" sanctioned or recognized by this House, be- 
" cause they are utterly" inconsistent with the 
" idea of republican Goverumcnt, and destruc- 
" tire of the phiinest and most undeniable civil 
"and political rights." 

AVe liave received this memorial, and there- 
by admitted that there is a question to be set- 
tled, and that there are those represented here 
■who have the ripht to demand an inquiry. 
Further, you have directed your committee to 
iuvestiti-ate it. AYill you nowafibrd them the 
means to perform the duty j'ou have imposed 
upon them ; or is this to be regarded as au idle 
and unmeaning ceremony? Are we to be 
met at every turn with mala fides? 

Sir, it is a question of usukpatton, and 
deeplj' concerns every American citizen. It 
involves the right of self-government in everj' 
part of our country — in the States as well as 
in the Territories. Can any Government of 
ours, independent or subordinate, be subvert- 
ed by force or fraud Avithout the means being 
left us to correct the wrong? Such is the 
naked question. Do the foundations of re- 
publican Government rest, as we have here- 
tofore supposed, upon a rock, or upon shift- 
ing sand ? As I look at it, no more import- 
ant question can engage the attention of the 
present Congress, or the present age. I am 
instructed by the gentleman from Maryland 
[Mr. Davis] to regard the matter in this light : 
for I understand him to assume substantially 
the position, that if the Governor of Kansas 
gave certificates of election to persons not le- 
gally elected to its Legislature, they are ipso 
facto a valid Legislature ; or if the President 
of the United States recognized them, at any 
period of time, as a Legislature, there is no 
power in our Government capable of deciding 
they were not a legal body. I shall be slow 
to believe in this doctrine of the honorable, 
gentleman. I will never admit that there is 
a power behind the State able to subvert it; 
or that the rights guarantied to the people 
of a Territory, by its organic act, may be 
wickedly trampled down without remedy. 
I should have much less confidence in the 
virtue of self-government than I profess to 
have, if I could admit that the sanction of 
a territorial Executive, or that of the Presv 
ident of the United States, given to acts of 
outrage, sanctified them. The contest 
which we are called upon to decide, as it 
presents itself to us, is of right under the 
law .with that of force above the law. 

I take this occasion to warn gentlemen of 
the South, lest they permit themselves to 
be led away by anything short of the merits 
of the present controversy. I warn them 
not to allow any other considerations than 
those of right and justice to enter into the 
determination of the issue. If I am not a 
" law-loving," I am, at least, a " law-abid- 
ing " man. I will stand by the law, and 
support and defend it whenever and wher- 
ever I may see it in danger. I ask other 
gentlemen to be equally loyal. Sir, we of 
the North have stood by the compromises 
of 1850. We have been invoked to do so ; 



it was right and we did so. I appeal to gen- 
tlemen now, not to set us an example of in- 
subordination — teaching us to disregard the 
law. I tell you, that if you sow such seed 
in the North, it v/il! fall in good glround, 
and bring forth an hundred-fold. 

I was opposed to ihc Kansas-Nebraska 
bill ; if I had been here I u ould have voted 
against it. 1 was opposed to it, because it 
violated and destroyed a solemn and long- 
subsisting compact. I v/as opposed to it, 
because it was 'predicated upon a lie. I 
was opposed to it, because it violated the 
pledges of the Democratic party of the na- 
tion. I was opposed to it because it falsified 
the plighted faith of the chief Executive to 
tl»e people. But it is enough for me to 
know that it has become a law ; I will abide 
by it. 1 will take it, as a wife is taken, for 
better or for worse. I will vote against a 
restoration of the Mi-soiiri compromise 
whenever such a proposition shall be 
brought before this Plouse ; and I will tell 
you why I will do so. I v/ill do so for the 
reason that that compromise has been filched 
— basely and ignominiously filched away. 
It has gone into the arms of the debauchee. 
It has been deflowered, dishonored, and you 
cannot restore its sanctity or its purity. I 
v/ill not again take it to my arms ; I will not 
receive it back again, to be again polluted. 
I will look upon it rather as a thing once 
loved, hut now lost forever. And, sir, I 
look forv/ard to the day — I may not live to 
see it ; nay, sir, 1 will not live to see it ; it 
is coming — when those who were instrumen- 
tal in the perpetration of that act of wick- 
edness or folly will repent the deed in sack- 
cloth and in ashes. I ask that this predic- 
tion may be remembered. 

Sir, the supporters of that bill have pro- 
claimed to the nation that the Territories 
of the United States are to constitute " a 
fair field," and that there is to be " a 
free fight " there, between the North and 
the South, to decide whetlier slavery or 
freedom shall rule them. If the energy, the 
cdterprise, the active modes of iife, the 
available caf-ital, and the numbers of the 
North, shall not be able to compete success- 
fully with their oppositcs in the South, and 
secure fruedom to the Territories, then I 
will admit that there is a vitality and a 
power in slavery which M'e of the North 
have never dreamed of. In my opinion, the 
Representatives of the South in the Thirty- 
Third Congress " have sown tlie fire, and 
they will gatiierflre into their own garners." 
The principle of "squatter " or *' popu- 
lar sovereignty " underlies the act (Organi- 
zing the Territory of Kansas. It consti- 
tutes, we have been taught to believe, its 
most prominent feature. It was the main 
argument for tiie enactment proper, as well 
as for the repeal of the compromise of 18i20. 
'• The true intent and meaning " of that act 
is declared to be, " not to legislate slavery 
into any Ten-ritorij or State, nor to exclude 
it therefrom, but to leave the people thereof 



' W 



perfectly free to form and regulate their do- 
mestic institutions in their own way, subject 
only to the Constitution of the United 
States." 

It will scarcely be denied, with the cur- 
rent history of the legislation of 1854 so 
freshly in our minds, that Congress profes- 
sed to give sovereignty, or tiie right of self- 
government, to the settlers in Kansas, it 
was announced to the people of the United 
States, tliat in emigrating to Kansas this 
rigiit would follow or welcome them there. 
But I understand the gentleman from Mary- 
land [Mr. Davis] to contend that we cannot 
inquire whethe;- the people of Kansas have 
been despoiled of this right or not. If I do 
not misconceive his views in this respect, he 
maintains this position, though the fact of 
usurpation be clearly transparent — though 
it be admitted that tliere has been a sheer 
robbery of the dearest political immunities 
guarantied by Congress in the organic act. 
Indeed, to give his argument the weight he 
Vk'ould wish it to have, he is forced to de- 
clare, that there is no power to investigate 
a case coming here circumstanced as the 
present case, though sovereignty has been 
•completely crushed out. In plain words, 
he must contend that we are bound to take 
any man professing to represent the Terri- 
tory, whether selected under tlie law, or in 
violation of all law. 

Sir, I enter my solemn protest against a 
doctrine so ruinous to, and subversive of, all 
rightful government. It is such a plea as 
anarchy and wild disorder would be likely 
to invoke in their defence. It has no place 
in my mind or my heart. I say, that, with 
the open grant of sovereignty contained in 
the organic act, and with the repeated proc- 
lamations of sovereignty made by those who 
invoked the enactment, the people of the 
Territory ought to demand it. I go further, 
and say, if there be one man there, v/ho will 
not insist upon it to tiie last of thought, of 
feeling, and of life, he is not a true son, but 
a bastard. He is unworthy to tread Ameri- 
can soil ; he should flee to the throne of the 
despot, and there, kneeling to the dust, in 
the abjectness and turpitude of his nature, 
utter hosannas to the rigor of the tyrant, the 
god of his idolatry, and swear eternal fealty 
on the galling cliains destined to bind him. 
Such a being would be far more servile, and 
destitute of manhood, than the negro slave 
himself, 

" If one 
Exist who would not arm lor liberty. 
Be lie, too, cursed living, and, when dead, 
Let him be buried downward, with his face 
Looking to hell, and o'er his coward grave 
The hare skulk in her I'orni !" 

The earliest writers on elementary law 
declare that it is useless to bestow aright 
without giving, at the same time, the means 
to enforce it. Does Congress possess the 
I power to restore sovereignty to the people 
of Kansas, if deprived of it in violation of 
law r I am not willing to so far emasculate 
the supreme power in the land as to say they 



have not. It would be saying, in effect, 
that the parent has no right to protect his 
child, i would rather say, that the power 



to bestov/ rights, without the power-to se- 
cure them, is a weakness which does not 
exist in the theory of our Government. I 
contend that the power to maintain a right 
is commensurate and coexistent with the 
power to bestow the right. 

Let us be honest ; let us be true to our- 
selves, as well as to those whom we have 
induced, by promises, to occupy our hitherto 
unsettled ■ domain. Let us not give these 
confiding pioneers an excuse to denounce us 
in the language spoken by Macbeth of the 
apparition: 

" And bs these juggling fiends no more believ'd, 
That palter wit't us in a double sense ; 
Tliat keep the word of promise to our ear, 
And brf ak it to our hope." 

Sir, I am bound to assume it as a fact, if 
there is a word of truth in the Kansas act, 
or in its supporters, that there is sovereignty 
in Kansas; and if there be sovereigntv 
there, that Congress is bound to protect'and 
defend it from violence, and to restoi-e it 
when taken away. 

Mr. Speaker, let us see wliat the contest- 
ant and his constituents represent to us. 
They say there has been an invasion from 
the State of Missouri; that the invaders 
wfre armed and equipped; that they seized 
upon the polls, and held them with a strong 
hand; and in this way imposed a pretended 
Legislature upon them. Let it be remem- 
bered — let it go to the country — that this 
astounding statement has not been denied; 
that investigation is not resisted because the 
allegations are not true; but because we 
cannot invest (s;(tte — 

Mr. SMITH, of Virginia. What state- 
ment.' n 

Mr. HICKMA?'^. I cannot yield to an 
interruption. 

Mr. SMITH. You made a statement. 
Mr. HICK-AIAN. I did make a state- 
ment, and the gentlem-an, if he wants to say 
anything, can wait till I conclude. 1 say 
they virtually admit an invasion of the 
Territory. 

Mr. SAIITH-. The statement has been 
utterlv and repeatedly denied. fCries of 
"Order!"] 

The SPEAKER. The gentleman from 
Virginia is not in order. 

Mr. HICKMAN. [ have not heard any 
gentleman upon this floor say, in plain 
terms, that there has not been an invasion 
of Kansas. I understood the honorable 
geutleman from Alabama [Mr. Smith] to 
say that disorders were to be expected in 
new Territories and border States; and, 
because they are to be expected, I presume 
we are to be asked to put up with them in 
whatever shape they may come, or with 
whatever potency they may manifest them- 
selves. Of course a denial of these asser- 
tions is not to be expected, as no one here 
can presume that he is acquainted with the 



facts. But, I observe, in a letter addressed 
by a citizen of Missouri to the Missouri 
Democrat, and published in that paper, that 
Mr. Atchison is charged with having used 
tlie following language, in a speech deliv- 
ered by him at Platte City, on February 4, 
1856: 

" Well, whatnext? Why, an election for 
" members of the Legislature to organize 
" the Territory must be held. What did I 
" advise you to do then? Why, meet them 
" on their own ground, and beat them at 
" their ov/n game again ; and, cold and in- 
" clement as the weather was, I went over 
" with a company of men. My object in 
" going v.-as not to vote. I had no right to 
" vote, unless I had disfranchised myself in 
"Missouri. I was not within two miles of 
" a voting place. My object in going was 
" not to vote, but to settle a difficulty be- 
" tween two of our candidates; and the Ab- 
" olitionists of the North said, und published 
"it abroad, that AtcMson was therewith boiuie- 
" knife and revolver, and by G — d 'twus true. 
" I never did go into that Tei-ritorrj — I never 
" intend to go into that Territory, without be- 
" ino- prepared for alt such kind of cattle. 
" Well, wc beat them, and Governor llee- 
" der gave certiticates to a majority of all 
" the members of both houses." 

This, as I read it, is something akin to an 
admission, on the part of Mr. Atchison, that 
there was a species of " armed intervention" 
between the people and their right to elect 
a Legislature. 

I will not venture to assert that these al- 
leged outrages have been perpetrated ; but, 
sitting here, I have a I'ight to know whether 
they be true or not. I should consider my- 
self faithless to my ofuce, if I did not seek 
to ascertain the truth. Unwilling as I am 
to yield S ready credence to such high 
charges, I am still sensible there are those 
in this country who, if they could distill a 
poison as potent as that of the fabled Upas 
Tree, would scatter desolation and death 
over every terrestrial paradise. Especially 
would they be willing to cast blight and bar- 
renness over this blest heritage of freedom. 
Failing to engraft some favo/ite theory upon 
our institutions, they would crush the Union 
itself, and, with it, the last hope of down- 
trodden man. 1 fear not their machina- 
tions, for I cannot but believe that the un- 
sleeping eye of the nation's God is upon 
them, and that the omnipotent word must 
soon be uttered, " Thus far shalt thou go, 
and no further." I have an abiding confi- 
dence that our country is still to move on- 
ward in her path of greatness and of glory; 
and that future millions will exultingly wor- 
ship in the temple of liberty, when nothing 
shall remain of the actual or constructive 
traitor but a deserted grave, and that retri- 
bution v.'bich must await an enemy of his 
race. 

The minority of the committee, in their 
report, and the sitting Delegate, in the pa- 
per he has filed, resist the right of this 



House to investigate the statements made by 
the people of Kansas upon three grounds: 

1. That the seat of the sitting Delegate can- 
only be contested by one who, if successful in 
removing him, would be entitled to the seat. 

2. That no inquiry can be made into the le- 
gality of the Kansas Legislature. 

3. If that inquiry could be had, then the acts 
of Governor Reeder prove its legality. 

I think I shall be able, Mr. Speaker, to 
satisfy all candid and unprejudiced minds 
that thei-e is no soiuidness whatever in either 
of these points thus made. 1 will examine 
them with as much brevity as possible. 

The first position assumed is, as I con- 
ceive, entirely unsupported by legal analo- 
gies, the dictates of reason, or the practice 
of this House. A contestant is not to be 
regarded in the light of a plaintifl' in court, 
for the reason that the determination of the 
question he raises concerns the House itself . 
as much, if not more, than it does tlie con- 
testant. The case is more akin to that of a 
court inquiring into its own constitution. 
Whenever a doubt is raised as to the title 
of one of its officers, or a challenge is made 
to the jurors returned to it, the court must 
stop to inquire into the truth of the alleged 
facts; it must determine whether its own 
parts ape legally constituted. This House 
is making up its ov/n constituent parts, and 
it will not admit a stranger. It is deciding 
who are its members, and ivhat title can be 
made out by those claiming seats. J^'o man 
devoid of title can sit here. This House, at 
least, cannot be made up by usurpation 

I am able to speak from the record, and 
to assert, in the most positive terms, that 
tills House, in at least seven dilTereiit in- 
stances, has undertaken to do that which we 
are now told it cannot do. In the cases to 
which I make reference, the House, of its 
own motion, without a contestant, institu- 
ted inquiry into the titles of those who 
claimed seats. They are as follows": David 
Baird, of Pennsylvania; N. Hunter, Dele- 
gate from Mississippi; J. P. Van Ness, of 
New York; Paul Fearing, Delegate from 
the Northwest Territory; George Mum- 
ford, of North Carolina; John Forsyth, of 
Georgia; and John Lanman, of Connecticut. 
These cases furnish, I think, a conclusive 
answer to the assumption, that there must 
be a contestant showing title before an in- 
vestigation can be had. But 1 will not rest 
my answer here, as 1 think it may be ren- 
dered still more conclusive. In the case 
now before the House there is a contest, not 
made by Governor E.eeder alone, but by the 
people of Kansas. It will scarcely be 
contended that inhabitants of tliat Territory 
are not entitled to be represented here. 
The organic act, I trust, has not become so 
worthless as such a denial would make it. 
They say General Whitfield is not their 
Delegate, and they demand a decision 
whether he be so or not. 1 will now give 
to the opposition eight cases wherein this 
House, upon the request of citizens alone, 



has investigated claims to seats. They are 
as follows : John Stanwick, of Pennsylva- 
nia; Joseph 15. Varnum, of Massachusetts; 
John IJoge, of Pennsylvania; M. l.eib, of 
Pcimsylvania; P. B. Key, of Maryland; 
John Bailey, of Massachusetts; John Ser- 
geant, of Pennsylvania: and Albert Galla- 
tin of Pennsylvania. The House, indeed, 
could not have done differently. Tliey 
could not avoid that most material inquiry, 
■whether those claiming to be members of 
their body were so or not? If ever a legal 
heresy emanated from a legal mind, the 
point I have examinecf is one, and I leave it. 

The second ground assumed by our oppo- 
nents is an important one, and will require 
of me a more careful consideration, it de- 
nies to us the power to inquire into the le- 
gality of the Territorial Legislature — in 
other words, it assumes that we must regard 
every body of men as legislative, which pro- 
fesses to be so. The minority of the com- 
mittee contend that an inquiry into the le- 
gality of a Legislature can only be made by 
the judiciary. As a general i>roposition 
liiis is true; but when applied to such a case 
as the- present it is untrue, and the reason is 
manifest. A court car. only determine such 
a question in a case properly before it; and 
a court has no concern 'v/ith contests for 
seats in Congress. On the contrary, the 
right to determine such questions is given 
by the Constitution to a very diti'erent tribu- 
nal. The language of the 5th section of 
the 1st article is, " JErtcfe House shall be the 
judge vf the elections, returns, and qualifica- 
tions of itsown members." The legitimate 
sphere of action of the diflerent depart- 
ments of Government are clearly defined, 
and we must not cont'ound them. 

But, sir, the gentleman from Maryland, 
[j.lr. Davis] has taken a more bold and dan- 
gerous ground. He has lelt all others far 
below him in the wild daring of his flight. I 
understand him to contend ; first, that, as by 
the Kansas act " the persons having the high- 
est number of legal votes shall be declared 
by the Governor to be duly elected," the de- 
cision of that ollicer is final — that his certifi- 
cate fixes the Legislature — even admitting 
that they were not legally elected. I regard 
any such notion as this perfectly heterodox. 
It cannot be, that the certificate is of greater 
value than the legal votes, and overrides 
them. I would rather contend that the legal 
votes wei-e the foundation of the title to the 
office, and the certificate but ancillary. To 
conclude that the certificate constitutes the 
foundation of title, would be to assume that 
the Governor could make a Legislature 
■without votes. But Governor Reeder as- 
serts that he gave the ccrtifiates in ignorance 
of the facts, and that the people were in- 
timidated from making complaint. If such 
■was the case, then, I reply, fraud or duress 
vitiates any and every act. 

The second postulate of the gentleman 
from Maryland is this : that, whenever there 
is a contest in a State or Territory as to the 



residence of sovereignty, the President of 
the Uniled States is to decide the question. 
Simplified, his proposition stands thus : that 
is the supreme power in a State or Territory 
■which the President recognizes as such. The 
President is bound by the Constitution to 
" see that the laws are faithfully executed;" 
and to cause laws to be executed it may be 
necessary for him to decide between rival 
Legislatures wliieh is the true one. This I 
do not deny. I do deny, however, that he 
can decide that question for Congress, or for 
either Triouse of Congress. Ke cannot make 
thq,t provision of the fundamental law, to 
which 1 have just referred, paramount to 
the other provision of the same law, that 
" each House shall be the judge of the elec- 
tions, &c., of its own members." Both 
provisions must exist in full and equal force. 
The sound view, 1 take it, is this: that the 
President may decide for himself, wherever 
and whenever it may become necessary for 
him to take action. So also may Congress, 
or either House of Congress, in like manner, 
decide for themselves v/henever it may be- 
come necessary for them to take action upon 
any matter which makes ihat inquiry neces- 
sary. What virtue would there be in the 
constitutional grant of power to this House 
to judge of the elections of its members, if 
the President could collaterally and finally 
decide that an illegal Legislature was a legal 
body, and, consequently, that its laws were 
valid, and all elections held in pursuance 
thereof binding? This would be concen- 
trating power in the hands of the Executive 
'io an alarming degree. It would be giving 
him the pov/er to subvert, by an easy pio- 
eess, not only every State government, but 
the General Government itself. 

Both positions I have been examining put 
a Legislature rffi/acio upon the same platform 
with a Legislature de jure. Tliey make 
proclamation of the monstrous doctrine that 
you may originate a bogus Legislature in a 
State, and if you can keep it in existence 
long enough to pass an act providing for the 
election of Senat(irs and Representatives in 
Congress, by getting an executive sanction 
to the usurpation, the Senators must be ad- 
mitted in the other end of your Capitol, and 
the Pvcpresentatives in this. These posi- 
tions, I repeat, being subversive of all right- 
ful government and all order, I must be par- 
doned for disagreeing with the logic of the 
honorable gentleman. 

Mr. Speaker, I am doubly supported in the 
views I have just expressed. 

In 1833, a question of contested election 
arose in the Senate of tlie United States, 
between Potter and Robbins, from Rhode 
Island, both claiming seats. The charter 
limited the term of service of the Legisla- 
ture to one year, and the body elected in 
aiay, 1831, " for the ensuing year," in Jan- 
uary, 1832, passed an act by which they ex- 
tended their term of ofiice for a longer term, 
in violation as was alleged, of the charter ; 
and still, holding on to their functions in 



January, 1833, they elected Mr. Robbins to 
the Senate for six'years from 4th March, 
1833. 

Before Mr. Robbins took his seat, another 
Legislature was elected, who declared (he 
act of January, 183:2, and the election of 
Mr. Robbins, void, on the e,roiind that the 
body who elected him was not at the time a 
valid Legislature, and had no right to act; 
and thereupon elected IMr. Potter. 

Both parties claimed the seat, and major- 
ity and minority reports were made, in both 
of which it was admitted in the clearest 
manner that the Legislature who had elected 
Mr. Robbins was an acting, de facto Legis- 
lature, in full possession of all the legisla- 
tive powers — unmolested in their enjoyment 
— passing laws, and the only Legislature in 
the State. And notwithstanding this, the 
inquiry was fully made and argued in both 
reports, whether it was or was not a valid 
Legislature; and upon this point the case 
Avas made to turn. The report of the ma- 
jority says: 

" Was the body by which he was chosen 
' a Senator the Legislature of Rhode Isl- 
" and, or v,as it merely an assemblage of 
" citizens without authority to pass laws?" 
" &c. 

It is also stated "that this General As- 
sembly continued to perform all tiioir func- 
tions until the end of the session of January, 
1333." And yet they add: 

" It remains to be inquired, was this body 
" so assembled the Legislature of Rhode 
" Island? . The law by which they continued 
"to exercise the powers of legislation is 
" said to be 'repugnant to the charter, and 
" therefore void. If this be a sound objec- 
" tion, it at once annuls every part of their 
" proceedings, and, as a necessary conse- 
" quence, that of choosing a Se:iator in 
" Congress." 

The minority report, drawn by Hon. Silas 
Wright, presents the same aspects of the 
question, viz: 1. The admission that the 
body was the sole acting Legislature of the 
State, engaged in the unmolested discharge 
of all their functions. 2. An inquiry into 
their title t) the office; and whether those 
functions were exercised rightfully or 
wrongfully. Blr. Wright further says : 

" The validity of the election of Mr. 
" Robbins is contested on the ground that the 
" persons acting as the Governor, Lieuten- 
" ant Governor, and Senators of the State, 
" and, as such, voting for a Senator at the 
"time Mr. Robbins's election was made, 
" were elected on the first Wednesday in 
" May, 1831, for the ensuing year, and for 
" no longer term — that the Legislature of 
" the State had not the power to continue 
" their ofiicial terms beyond the limits fixed 
" in the charter, &c. 

" On the other side, it is contended that, 
" by the charter itself, the offices, powers, 
" and duties of those officers do not cease 
•' and determine until others are elected in 
♦' their places; that the Legislature of Rhode 



" Island have passed many laws in contra- 
" vention of the charter: that the practice 
" of the government, as shown by its legis 
" lation, proves that the charter has not 
" been held to be tiiC fundamental lav/ of 
" the State, except as to certain specific 
" grants; and that the act of January, 1832, 
" does not conflict with those grants, and is 
" therefore valid in all its parts." 

Thus the question was fully, deliberately, 
and solemnly raised, examined and passed 
upon in the Senate of the United States, 
whether an acting Legislature, in the full 
exercise of all the proper functions, and 
recognized by the co-ordinate branches had 
acquired their powers rightfully or wrong- 
fully — whether they were in office by right- 
ful title or by usurpation. 

Again: 1 hold in my hand the decision of 
the Supreme Court of the United States, 
delivered by Chief Justice Taney in the case 
of Luther vs. Borden, el al., in 7 Hovard, 
pp. 42, 45; and in that decision I find the 
following doctrine laid down: 

" Under this article (tliat which guaran- 
" ties to the States a republican form of 
"government) of the Constitution, It rests 
" witli Congress to decide what government 
"is the established one in a State; for, as 
" the United States guaranty to each State 
" a republican government. Congress must 
" necessarily decide what government is 
" established in the State, before it can de- 
" termine whether it is republican or not; 
" and when the Senators and Representa- 
" fives of a State are admitted into the 
" councils of the Union, the authority of the 
" goveriunent under which they are appoint- 
" ed as well as its republican character, is 
" recognized by the proper constitutional 
" authority; and its decision is binding on 
" every other Department of the Govern- 
" ment, and could not be questioned in a 
"judicial tribunal. It is true tliat the con- 
" test in this case did not last long enough 
" to bring the matter to this issue; and as no 
" Senators or R.cprescntatives were elected 
" under the authority of the government of 
"which Mr. Dorr was the head. Congress 
" was not called upon to decide the contro- 
" versy. Yet the right to decide is placed 
" there and not in the courts." 

# ».- * * # * 

" Undoubtedly, if the President, in exer- 
" cising this power, shall fall into error, or 
" invade the rights of the people of the 
" State, it would be in the power of Con- 
" gross to apply the proper remedy. But 
" the courts must administer the law as they 
" find it." 

I apprehend there will be little difTiculty 
; where there is no prejudice, with these cases 
[before us, in coming to the conclusion that 
1 this House is without restriction in the ex- 
ercise of its constitutional right of investi- 
gating the election, even of Representatives 
from a sovereign State. If we can test the 
validity of the Legislature of a State — a 
sovereignty- where we have no power but 



that which is expressly deleg.itecl, dare you 
deny the right to inquire inio the title of the 
Legislature of a mere dcjiendency? Let it 
not be forgotten that the Territory of Kan- 
sas is " the property " of tlie United States, 
to all intents and purposes, as fully as my 
house is my property. Congress has tlie 
power " to dispose " of it, and to " make all 
needful rules and regulations respecting " it. 
The language of the Constitution is : — 
• " The Congress shall have power to dispose 
of and make all needful rules and regula- 
tions respecting the territory or other prop- 
erty belonging to the United States." We 
may change, modify, or repeal the organic 
act itself. Our rights over the territory of 
the United States are most absolute, even 
to that of an unrestricted disposal of it. 
With such unlimited control of our territo- 
ry, would it not be strange, indeed,' if we 
could not determine whether a Delegate, 
professing to come from a Territory, is sent 
here by the people of the Territory, or by 
an invading army? Congress may destroy 
the legislative body itself, and consequently 
their creations; for it will not do to assert 
that the creature is greater than the creator. 

"'Tis mad idolatry 
To make the service greaier than the god." 

Let not what I have said of the powers 
of Congress be considered inapplicable to 
the argument, for it is to be ^remembered 
iliat this House is as omnipotent within its 
prescribed circle of aciion as Congress is 
within its defined limits. I conclude this 
part of my argument with the remark that 
this House may judge of the election of its 
members — not in one case — not in a partic- 
ular class of cases — but in ail cases which 
can possibly arise; not with limit, but with- 
out any restriction whatever. In the case 
of a Delegate it may push its inquiries back 
to the moment the organic act was signed. 
Any view which militates against this, wars 
against the Constitution, the human under- 
standing, and unwavering precedent. Such 
a view is destructive of all sovereignty, 
both in State and Territory, and is sickly as 
consumption — weak as fancy — impalpable 
as air — imponderable as light. 

Mr. Speaker, I shall bestow but little 
time upon the consideration of the third and 
last objection raised to the proposed inves- 
tigation. It is urged, with seeming gravity 
at least, that Governor Reeder, by appoint- 
ing the judges of election, giving certiticates 
to seventeen out of twenty-six of the Rep- 
resentatives, and to ten out of thirteen of 
the Council, and delivering messages to the 
body convened at Pawnee, made those thus 
convened there a legal body. I reply that 
no act of Governor Reeder could legalize 
an illegality. The people of the Territory 
had no control over him or his acts, and he 
could do nothing which would rob them of 
their rights. If, however. Governor Reeder 
attempted to legalize an illegal body, and 
to drown the self-government conferred 
upon his people by the act organizing the 



Territory, there is the greater reason why 
the people should be allowed to discover 
that fact, and why we should listen to them. 
The idea that under a popular Government 
an oflicer, whom the people can neither cre- 
ate nor control, can destroy without redress 
a guarantied Sovereignty, is monstrous in 
the extreme. It would drive us to this par- 
adoxical conclusion: that Congress made 
an act, which made an officer, vvho did a 
thing, and tiiat tlie thing must be ever-exis- 
tent thereafter, because greater than Con- 
gress. 

Upon the material arguments embraced 
in the report of the minority, as well as the 
written answer of General Whitfield, I have 
said all liiat I have the strength to sa} . A 
single allusion further to the latter paper, 
and I leave them. I allude to the intimation, 
therein made, of the unfitness of Governor 
Reeder for the position of Governor of the 
Territory. 1 am sorry that the sitting dele- 
gate should have considered it necessary to 
his case to give such an exhibition of his 
passion or his spleen to this House. 

I am neither the defender nor apologist of 
Governor Reeder ; he requires neither. I 
am aware that the President of the United 
States has made an effort — and that, too, of 
no ordinary character — to stigmatize his ap- 
pointee wi;h dishonesty, and to sink him as 
a politician and a man; but I am also aware 
tliut no popular verdict has as yet been ren- 
dered in accordance with the high executive 
accusation. That verdict, thus invoked, in 
my opinion will never be rendered. In point 
of social posil ion, moral worth, gentlemanly 
bearing, legal learning, and general intelli- 
gence, he is not one whit beiow that of the 
President himself. Of that present and 
ephemeral importance which power and 
place confer he cannot boast, but in this re- 
spect alone is his standing inferior to that of ' 
his accuser. This is not the first instance, 
however, in our history where a hasty and 
ill-advised stroke from the hand of power 
has failed to destroy the object at which it 
was aimed. The Senate of the United States 
refused to ratify the nomination of a Van 
Buren as Minister to the Court of St. James, 
but an indignant people placed the seal of 
their reprobation upon'the official act, and 
made him their chief. An arbitrary court 
imposed a vindictive fine upon the hero of 
New Orleans: the popular voice named him 
the head of the greatest nation of the globe, 
and the American Congress restored the 
right of which he had been deprived. 

The character of Gov.- Reeder is unaffec- 
ted in his native State; whilst the recent 
action of the Democracy of that State has 
exhibited an unv/illingness on their part to 
be further governed by his denouncer, al 
though solicited to be so. If he is unfit for 
Governor of Kansas, then may it truly be 
said that Pennsylvania has no son within her 
borders who may be esteemed worthy. 

Mr. "Speaker, seeing that we have a clear 
right to investigate the facts of the present 



8 



case, there is but a single question remain- 
ing. Shall we rely upon books, papers, ru- 
mors — wliich are completely pantamorphic 
— for our facts, or sliall we conduct our in- 
vestigations with some respect to decency 
and propriety? This is no time, and this no 
case, inviting us "to change true rules for 
odd inventions." If we arc constrained to 
conduct them by the former means, v/e will 
be launched iiito an inquiry as mysterious 
and impenetrable as the Iron Mask. Let us 
not so far record a slander upon our judg- 
ments as to decide we will wander in a laby- 
rintli of conjectures in search of facts. The 
investigation must be conductijd by the pro- 
duction of legal evidence: tiie importance 
of the question at issue demands it, the state 
of the public mind demands it, and the sanc- 
tity of our frame of government demands it. 
Sir, I am not wedded to the resolution re- 
ported by the committee. I have no feeling 
of pride v^hich can bind me to it. I am will- 
ing to give ray support to any proposition 
wliich will eflectuate the object I have in 
view. I have little faith that a commission 
can be executed within the Territory of 
Kansas. There are serious disorders there, 
even at this moment, and an increasing ten- 
dency to a state of actual war. The recent 
proclamation of the President of the United 
States warns us of the danger of a fresh in- 
vasion of the Territory. An attempt to exe- 
cute a commission there would necessarily 
bring the v/arring elements in contact, and 
of itself produce disasters. The proposition 
of the gentleman from Indiana [Mr. Dunn] 
will allow tlie committee, which it contem- 
plates shall be raised, to sit outside the Ter- 
ritory. Am 1 mistaken in this? | 



Mr. DUNN. The object of my proposi- 
tion is to clothe the committee with power 
to go whore it would be convenient for the 
witnesses to attend. 

Mr. HICKMAN. So I understand it; and 
that the committee will not be bound to sit 
within the Territory, if found inconvenient, 
from any cause, to do so. I will then vote 
for it: 1 will not risk a full investigation by 
standing on a sharp point. 

1 have not under-estimated, Mr. Speaker, 
the force of the opposition on this floor to 
any and. every measure having for its object 
the production of facts. I know that a sin- 
gle vote may be of the utmost importance, 
and I call upon those favoring investigation 
not to sacrifice everything to a trilling ob- 
jection. Twenty-three centuries and a half 
ago, Callimachus, standing on a mount over- 
looking the plain of Marathon, by his single 
vote decided the progress of human civiliza- 
tion by agreeing to fight the Persians under 
Darius. Sir, in my opinion, a single vote 
cast here to-day may produce the most stu- 
pendous consequences. It may decide whe- 
ther this House of Congress is a fair and im- 
partial one, or whether it is reckless and 
desperate. It may decide whether we will, 
by the practice of equity, purchase a glori- 
ous future, or, by denying it, blacken our 
coming history. The massy pillars of this 
Jlepubiic, though strong as human ingenuity 
could construct them, may nevertheless be 
shaken — yea, they may be crushed : Let us 
ever be mindful that it is alike our highest 
duty and our greatest interest to support 
them, as by their overthrow we would be 
compelled to suffer a common ruin. 



PUBLISHED BY THE KEPUBLICAN ASSOCIATION OF WASHINGTON, 



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